Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tanious v Georges River Council [2017] NSWCA 204 Hearing dates: On the papers Decision date: 16 August 2017 Before: Leeming JA; White JA Decision: Summons seeking leave to appeal filed on 6 June 2017 is dismissed, with costs. Catchwords: LEAVE – Leave sought to appeal against a decision of the Land and Environment Court on a question of law – Council orders regulating the keeping of poultry on residential premises by council – Concession that Japanese quail is "poultry" – No question of law – No question warranting grant of leave – Leave refused Legislation Cited: Land and Environment Court Act 1979 (NSW), ss 4, 18, 56A, 57 Local Government Act 1919 (NSW) Local Government Act 1993 (NSW), ss 124, 159, 160, 180 Protection of the Environment Operations Act 1997 (NSW) Cases Cited: Tanious v Georges River Council [2016] NSWLEC 1330 Tanious v Georges River Council [2016] NSWLEC 142 Category: Principal judgment Parties: Mofeed Louis Tanious (Applicant) Georges River Council (Respondent) Representation: Counsel: Applicant in person M Seymour (Respondent) Solicitors: Georges River Council (Respondent) File Number(s): 2017/323220 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 2 Citation: [2017] NSWLEC 58 Date of Decision: 17 May 2017 Before: Pain J File Number(s): 17/32320 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: This application for leave to appeal has a long procedural history which needs to be summarised in order to expose the issues. 2. The starting point was an order made by Hurstville City Council dated 18 January 2016 in the following terms: "TERMS OF ORDER 1. Remove all poultry from the above premises with the exception of ten (10). (Excluding offspring to three months of age). 2. Remove all roosters. 3. Poultry to be kept in a poultry house that is enclosed, have hard paving and kept a distance of 15.2 metres away from dwelling. REASON FOR ORDER 1. The Poultry are being kept under conditions which have the potential to cause unhealthy conditions and prohibited to be kept under the provisions of Hurstville City Council's Local Orders Policy – Keeping of Animals 2014." 1. That order was made pursuant to s 124 of the Local Government Act 1993 (NSW). Section 124 provides that: "124 Orders A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. Orders requiring that premises be used or not used in specified ways Column 1 Column 2 To do what? In what circumstances? Column 3 … … To whom? 18 Not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order Birds or animals kept on premises are: … (a) in the case of any premises (whether or not in a catchment district)—of an inappropriate kind or number or are kept inappropriately, or Occupier of premises …" 1. On 1 July 2015 the Council adopted a Local Order Policy on Keeping of Animals. The Local Order Policy was presumably made pursuant to Part 3 of Chapter 7 of the Local Government Act under which a council may prepare a policy specifying criteria the Council must take into consideration in determining whether or not to give orders under s 124 (s 159(2)). 2. The purpose of the policy was stated to be to inform readers of the reasonable limits the Council would apply to the keeping of animals in the urban environment of the council, whether as companion animals, pets or for hobby interests. The policy applied also to birds. Under the heading "Poultry" the Local Order Policy plan stated a maximum number of 10 domestic and guinea fowl and five poultry other than fowls. 3. An "appeal" lies to the Land and Environment Court pursuant to s 180 of the Local Government Act 1993 (NSW). Such an appeal is heard and determined in the exercise of Class 2 of that Court's jurisdiction: Land and Environment Court Act 1979 (NSW), s 18(a). Mr Tanious brought such an appeal and achieved a partial success, insofar as a Commissioner increased the number of birds that could be kept on the property, and reduced the distance each poultry house had to be kept from a dwelling: Tanious v Georges River Council [2016] NSWLEC 1330. 4. As modified following the appeal, the order took the following form: "Remove all poultry from the above premises with the exception of ten (10) chickens and 5 other poultry (Excluding offspring to 3 months of age) and including Japanese quail. Remove all roosters. Poultry to be kept in a poultry house that is enclosed, has hard paving and kept a minimum distance of 4.5m from any dwelling house." 1. A further appeal, confined to questions of law, lies from a Commissioner exercising Class 2 of the jurisdiction of the Land and Environment Court: Land and Environment Court Act s 56A(1). Mr Tanious availed himself of that right. That appeal came before Pepper J on 1 November 2016, who upheld one aspect of the appeal on the basis that there was no evidence before the Commissioner that the crowing of roosters on Mr Tanious' property amounted to an "offensive noise" within the meaning of that term in the Dictionary to the Protection of the Environment Operations Act 1997 (NSW), which, speaking generally, requires noise which is either harmful or interferes unreasonably with persons outside the property. Her Honour concluded that the finding was material to the Commissioner's order that the roosters be removed from the property, and accordingly determined that the appeal had to be allowed: at [57]. Relevantly for present purposes, at [61]-[74], Pepper J considered the question whether Japanese quail were poultry, and concluded at [73]: "Because it is strictly not necessary for me to determine this vexed question of construction given my finding above in relation to offensive noise, and because the matter must be remitted to the Commissioner for redetermination, I am not inclined to deal with the matter further. In my opinion, its resolution is one that would be greatly assisted by expert evidence. This would determine the matter quickly and to finality." 1. Her Honour added that "it is highly unlikely that Mr Tanious' Japanese quails are 'pigeons' for the purpose of the policy": at [74]. 2. A further hearing was conducted by a Commissioner on 16 January 2017. On the "vexed question" of the characterisation of Japanese quail, the Commissioner recorded counsel's submission that it was and a concession by Mr Tanious of that fact: at [10]-[13]. 3. The form taken by the order following the decision of the Commissioner was a follows: "(a) Remove all poultry from the above premises with the exception of ten (10) domestic poultry or guinea fowl and 5 other poultry (Excluding offspring to 3 months of age) and including Japanese quail. (b) Poultry to be kept in a poultry house that is enclosed, has hard paving and kept a minimum distance of 4.5m from any dwelling house." 1. Once again, Mr Tanious appealed to a judge of the Land and Environment Court. This appeal was heard and determined by Pain J. Her Honour recorded Mr Tanious' submission that the limit imposed of 15 poultry was unsupported by reliable evidence, in the absence of independent expert opinion, and was unaccompanied by any evidence that a large number of birds (Mr Tanious sought 150) had any health impact or produced offensive noise. Pain J noted that there was no challenge to the numbers of birds before the Commissioner, and so this aspect of the appeal was not available to him: at [17]. Her Honour also recorded a submission that Mr Tanious was denied procedural fairness in relation to the calling of expert evidence: at [19]. Her Honour made reference to what had been identified to Mr Tanious following the earlier appeal before Pepper J and also to what had been said before the Commissioner at page 2 of the transcript of 2 August 2016. Her Honour concluded on this point at [21]: "There can be no suggestion of denial of procedural fairness by the Commissioner as Mr Tanious does not appear to have made an application to rely on any evidence, expert or otherwise at the remitter hearing." The appeal was dismissed. 1. It is from that decision that leave is sought to bring a further appeal on a question of law to this Court. A further appeal is, once again, confined to a question of law, and is only available with the grant of leave: Land and Environment Court Act, s 57(1) and (4)(c). 2. The proposed grounds of appeal are drafted as follows (Mr Tanious appears to have been unassisted by legal representation, and has appeared for himself throughout the litigation): "1. The court below decision a sort of natural justice as there was no evidence in support, and the applicant's evidence all has been neglected concerning the number of poultry birds applicant has been keeping in the back yard of a home in the residential area. 2. An asserted error in the construction of the respondent policy which was adopted on 1st July 2015 concerning poultry birds applicant has been keeping in the back yard of home in a residential area resulting in the applicant's appeal was upheld before the NSW Land and Environment Court from the beginning and remitted due to the absence of evidence. That policy did not mention Japanese quail and when applicant accepted this bird could be considered as poultry according to the expert opinion which was provided on 16th of January 2017 before the commissioner, respondent refused to increase the allowed number of poultry without evidence, independent expert, and public submission according to the local government Act 1993 No 20 NSW sections 124, 161, 180 as well as the local government (general) regulation 2005 under the local government Act 1993 NSW division 2 cl 19,20". 1. Without conveying any disrespect to Mr Tanious, his summary of argument contains paragraphs which are difficult to follow. By way of example, the first paragraph of his submissions outlining his argument is as follows: "1. Applicant did not give verbal or written consent about this matter to be conducted without independent expert opinion. When he accepted that Japanese quail could be considered as poultry depending on the expert opinion was provided by the court commissioner during hearing on 16th of January 2017 that is to say it could be considered partial acceptance was provided by the applicant depending on the mentioned expert opinion but not complete acceptance for the respondent and the commissioner opinion concerning the number as the court below understood." 1. Mr Tanious also contends that there was no evidence that 15 birds was the appropriate number to be kept, that the respondent Council "has abused the legal authority by limiting the number of poultry birds without any evidence", that the Local Government Act did not permit the Council to adopt its local policy without evidence and that "The local government Act 1919 No 41 has been repeated from section 1 to section 319". 2. We have not attempted to summarise all aspects of Mr Tanious' summary of argument, although each of us has read it in its entirety. 3. Mr Tanious is, with respect, correct to observe that the Local Government Act 1919 was long ago repealed, but that is merely a typographical error in the judgment. It is as well to reproduce the exchange relating to the concession about Japanese quail (transcript, 16 January 2017, p 12): "APPLICANT: Thank you, and I accept, I accept that Japanese quail as a poultry because this is an expert confirm this one. I'm happy with this information, I didn't have it previously. COMMISSIONER: Mr Cottom? COTTOM: Commissioner, in relation to the Japanese quail point, I gratefully accept Mr Tanious' concession that Japanese quail are poultry for the purposes of the policy." 1. There is nothing on the face of the transcript to suggest that Mr Tanious' concession was unqualified. The Commissioner returned to the Japanese quail at p 15 and asked "Given your recent concession on Japanese quail being poultry ...", and, once again, Mr Tanious did not seek to qualify the concession he had made. 2. There would at least arguably be a question of law warranting a grant of leave if the primary judge had wrongly failed to find a failure to accord procedural fairness to Mr Tanious on the part of the Commissioner. However, the materials do not suggest any denial of procedural fairness. To turn to what appears to be the central complaint made by Mr Tanious, and as Pain J indicated, it is clear that Mr Tanious had previously been told that if he wanted to adduce expert evidence, it was necessary for him to file and serve expert reports. At the hearing in August 2016, Mr Tanious was confronted with the same obstacle, having failed to file and serve evidence as directed, and there was this exchange (transcript pp 2-3): "COMMISSIONER: Where are they? They should be here. You've had more than a month to put that evidence onto the court proceedings. APPLICANT: They gave me – if you Honour is able to talk to them on phone? COMMISSIONER: No. I can't do that. That's introducing evidence that the council have had no time to consider." 1. The first ground of appeal appears to be that there was no evidence of the number of poultry birds the applicant had been keeping in the back yard of his house and his evidence about this was "neglected". It may be that the applicant seeks to repeat his submission to the Land and Environment Court that there was no evidence that his keeping up to 150 poultry had any health impact or produced offensive noise. 2. The second ground appears to be that: 1. the respondent Council and the Commissioner were bound to accept that as Japanese quail can be considered poultry, the number of poultry allowed to be kept had to be increased; and 2. there was no independent expert evidence and no opportunity for public submissions in relation to the Local Order Policy – Keeping of Animals adopted by the Hurstville City Council on 1 July 2015. 1. As to the first ground, there was evidence from an inspection on 3 November 2015 that the applicant was then keeping approximately 60 birds, including quails. An inspection on 15 April 2016 revealed the presence of 30 chickens, three turkeys and 100 quails (Tanious v Georges River Council [2016] NSWLEC 142 at [13(b)] per Pepper J). 2. Whether more than an appropriate number of birds was kept by the applicant so as to justify an order under s 124 was a matter of evaluative judgment dependent upon the facts, and having regard to the critieria in the LOP. It did not raise a question of law. 3. As to the proposed second ground of appeal, the applicant did not dispute that he had agreed that Japanese quail were poultry. His argument is that having regard to the differences between Japanese quail and other poultry the Commissioner ought not to have applied the LOP to Japanese quail. 4. This argument raises questions of fact and evaluative judgment. It does not raise an error of law. 5. The proposed last ground of appeal apparently challenges the procedures for adoption of the LOP in so far as it relates to the keeping of birds or poultry, either on the ground of lack of public submission or independent expert evidence supporting the policy. The former ground was not raised as an issue. The applicant has not adduced evidence nor submitted in his summary of argument that public notice and public exhibition of a draft of the policy was not given in accordance with s 160 of the Local Government Act. 6. The primary judge found (at [17]) that: "No expert evidence was relied on by the Council to support such a number. Nor was it needed given there was no challenge to the making of the LOP before the Commissioner, as she identified in [25]. To the extent that Mr Tanious appeared to be challenging the LOP this is not available in this appeal as he is bound by his conduct in the remitter hearing." 1. The applicant has not shown even an arguable case of error in respect of this conclusion. 2. Mr Tanious' submissions do not elucidate any material error of law in the reasons of the primary judge. Even if there were, an appeal lies only with the grant of leave, and there is no question of principle, no question of general public importance, nor any suggestion of an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. This is a clear case for the refusal of leave for Mr Tanious to bring a second appeal on a question of law from the Commissioner's decision as to the Council's order regulating the keeping of poultry. 3. Both parties agreed to the application for leave being dealt with in the absence of the public, and that choice will have the effect of reducing the costs incurred. However, contrary to Mr Tanious' submission, there is no occasion to displace the usual order that costs follow the event. The result is that the summons seeking leave to appeal filed on 6 June 2017 is dismissed, with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2017